The murder of a slave appears to me a crime of the most atrocious and barbarous nature; much more so than killing a person who is free, and on an equal footing. It is an evidence of a most depraved and cruel disposition to murder one so much in your power that he is incapable of making resistance, even in his own defense; and if, at any time, his conduct becomes so obnoxious that it cannot be longer borne by his master, he has it in his power to dispose of him and remove him to any distance he thinks proper. It is unnecessary to consider what punishment was annexed to the murder of slaves in other countries, either in ancient or modern times; the definition of murder, as laid down in our books, applies as forcibly to the murder of a slave as to the murder of a free man; and had there been nothing in our acts of Assembly, I should not hesitate on this occasion to have pronounced sentence of death on the prisoner.
But the Act of 1791, ch. 4, sec. 3, after enacting "that if any person hereafter be guilty of willfully and maliciously killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of `murder'"; had the act of Assembly stopped here, there could have been no doubt in the present case; but, when it goes on further to assign the punishment, it enacts in these words: "and shall suffer the same punishment as if he had killed a free man." The killing of a free man is punished in different ways, and, in some cases, no punishment is annexed to it; as where a man kills another by accident, or as it is expressed in our books per infortunium, or where a man kills another in his (199) own defense. From the context, and taking every part of the section under consideration, there remains no doubt in my mind respecting the intention of the Legislature; but the Judges in this *Page 175 country, as well as in England, have laid down, and invariably adhered to, very strict rules in the construction of penal statutes in favor of life; such as, that the words should be taken in mitiori sensu, where they are doubtful, or will admit of various constructions; and that nothing shall be taken by construction, implication, or reference from the context.
Under these considerations, under the influence of the decisions of the most respectable Judges as reported in all the books which treat of the criminal law, though not without a considerable degree of reluctance, I am of opinion that the judgment in this case should be arrested.